Partly allowed

DM United India Insurance Co. Ltd. N.Bad v. T.Venugopal and Another

Telangana HC6 Nov 2012CMA/1128/2003

Case brief

AI extract

What is this about?

The court allowed the insurer's appeal in part after calculating a 15% partial permanent disability by averaging conflicting evidence. Compensation for a 12-year-old minor was set at Rs. 68,000 inclusive of amounts for pain, sufferance, medical expenses, and extra nourishment, along with 6% interest.

What did the court decide?

Compensation of Rs. 68,000 along with interest at 6% per annum awarded. Deposit ordered within one month.

DM United India Insurance Co. Ltd. N.Bad Vs… — Motor Accident Claims | Telangana HC (2012)

¶1

HON’BLE SRI JUSTICE K.G.SHANKAR Civil Miscellaneous Appeal No.1128 of 2003

¶2

Date: 06-11-2012

¶3

Between

¶4

The United India Insurance Co. Ltd., Rep. by its Divisional Manager, Divisional Office, Godown Road, Nizamabad

¶5

… Appellant/ Respondent No.2

¶6

and

¶7

T.Venugopal, Minor, rep. by his natural Mother and next friend Smt. T.Savithri

¶8

… Respondent/Petitioner

¶9

B.Ganapathi Reddy

¶10

… Respondent/ Respondent No.1

¶11

HON’BLE SRI JUSTICE K.G.SHANKAR Civil Miscellaneous Appeal No.1128 of 2003 Judgment:

¶12

The 2^nd respondent-insurer before the Motor Accident Claims Tribunal cum District Court, Nizamabad (the Tribunal, for short), sought to set aside the award of compensation at Rs.1,00,000/- in favour of the sole claimant therein. The claimant sustained injuries when the tractor of the 2^nd respondent hit the motorcycle on

¶13

which the claimant was a pillion-rider resulting in fracture of the right foot and injuries to the head and both hands of the claimant. Compensation at Rs.1,50,000/- was claimed by the sole claimant. Considering that the claimant sustained disability to

¶14

a tune of 30%, compensation was awarded at Rs.1,00,000/- as stated above.

¶15

2. There is no dispute regarding the mode and manner of the accident. The insurer questioned the quantum of compensation awarded. Narrowing down the question further, it may be pointed out that the disability at 30% as declared by P.W.2 is the main aspect on which the insurer filed the present appeal.

¶16

3. The claimant was 12 years old at the time of the accident. The next friend of the claimant averred that the claimant was working as a Sales-boy in a Gold and Pearl merchant shop at Nirmal and was earning Rs.3,000/- per month. No one was examined by the claimant apart from the claimant himself to prove the calling of the claimant. No documentary evidence like

¶17

a salary certificate was filed to support the case of the injured claimant. Where the claimant was a minor at the time of the accident, I am not prepared to accept that the claimant was working, much less earning Rs.3,000/- per month, more so from the mere ipsi dixit of P.W.1. I consider that the income of the claimant deserves to be

¶18

worked out notionally at Rs.15,000/- per annum since the accident occurred on 26-5-1996. The notional income of the claimant at Rs.15,000/- per annum shall constitute the basis of the calculation.

¶19

4. P.W.2 is the doctor who issued Ex.C-1 disability certificate. P.W.2 did not treat the claimant. He merely examined the claimant on 10-12-2000. On the basis of clinical and physical examination and verification of the past medical record, P.W.2 opined that the claimant suffered disability to a tune of 30%.

¶20

5. Smt. S.A.V.Ratnam, learned Standing Counsel for the insured-appellant, contended that P.W.2 is an accommodating Orthopaedician, that he has been in the habit of issuing disability certificates without proper verification and that his name has in fact

¶21

been blacklisted by all the Insurance Companies.

¶22

On 17-7-2012, the learned Standing Counsel for the insurer offered that the claimant be examined by a Medical Board and that the rate of disability as determined by such Medical Board be treated as the guiding factor to determine the rate of partial permanent disability. Consequently, orders were passed on 17-7-2012 directing the claimant to take steps to appear before a Medical Board and produce the disability certificate issued by such a Medical Board. The case came up before me again on 03-10-2012. By then

¶23

a certificate from the Medical Board could not be produced. When the case came up on 31-10-2012, the learned counsel for the claimant submitted that for one reason or the other, the Medical Board could not be constituted. He invited me to dispose of the case on merits.

¶24

6. Where a direction was issued to the claimant to submit himself before the Medical Board and where the claimant did not abide by the direction, the learned Standing Counsel for the insurer contended that it should be treated that there was no partial permanent disability. It is the case of the learned counsel for the claimant that the claimant could not be examined before the Medical Board as the Medical Board could not be constituted for one reason or the other and that it would be unjust to penalize the claimant for not appearing before such a non-existent Medical Board. To strike

¶25

a balance between the two situations, it would be just and proper to average the rate of partial permanent disability between ‘no disability’ (being 0%) and 30% and determine the rate of disability at 15%. Indeed, it is only an assumption that the claimant sustained partial permanent disability to a tune of 15%. Where there is no evidence on either side to arrive at the rate of disability and where there is no evidence to conclude that there was no disability at all, I consider that the only alternative is to arrive at the rate of disability on the basis of some norms. Adopting

¶26

the norm of average, I determine the rate of disability at 15%.

¶27

7. The claimant was 12 years old at the time of the accident. Consequently, the appropriate multiplier would be ‘18’. If the annual notional income at Rs.15,000/- is multiplied by 18, the amount would be Rs.2,70,000/-. As the disability was 15% of the same, 15% of Rs.2,70,000/at Rs.40,500/- shall be treated

¶28

as compensation towards partial permanent disability. The Tribunal awarded Rs.15,000/- towards pain and sufferance and Rs.10,000/- towards medical expenses. The claimant shall be entitled to these amounts. As the claimant was 12 years old at the time of the accident and also suffered fracture, I deem it appropriate to award Rs.2,500/- towards extra nourishment.

¶29

8. The claimant accordingly is entitled to compensation at:

¶30

(a) Compensation towards … Rs.40,500/-

¶31

partial permanent disability at 15%, worked out on the notional income of Rs.15,000/- per annum

¶32

(b) Compensation towards … 15,000/pain and sufferance

¶33

(c) Compensation towards … 10,000/-

¶34

medical expenses (d) Compensation towards … 2,500/-

¶35

extra nourishment

¶36

--------------Total … Rs.68,000/---------------

¶37

The claimant shall accordingly be entitled to compensation at Rs.68,000/-.

¶38

9. The Tribunal awarded interest at 9% per annum. The Tribunal disposed of the claim in August, 2002. The accident occurred in 1996. In view of the date of the accident and date of disposal of the case, it would be just and proper to determine the rate of interest at 6% per annum only. The claimant accordingly is awarded compensation at Rs.68,000/(Rupees sixty eight thousand only) together with interest at 6% per annum from the date of the petition till deposit and costs pro rata. 10. The appellant-insurer and the 2^nd respondentowner of the vehicle, who are jointly and severally liable, shall deposit the awarded amount within one month from today. On such deposit, the claimant shall be entitled to withdraw the entire deposited amount together with accrued interest and costs in view of the quantum involved. This appeal however is allowed in part without costs.

¶39

__________________ K.G.SHANKAR, J.

¶40

06^th November, 2012. Ak

¶41

HON’BLE SRI JUSTICE K.G.SHANKAR

¶42

Civil Miscellaneous Appeal No.1128 of 2003 (P.D. Judgment)

¶43

th 06 November, 2012. (Ak)

DM United India Insurance Co. Ltd. N.Bad v. T.Venugopal and Another

Case brief

What is this about?

What did the court decide?

DM United India Insurance Co. Ltd. N.Bad v. T.Venugopal and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

New India Assurance Company LTd., Vs Kandavilli Venkata Rao S/o. Mahalakshmi

United India Insurance Co. Ltd. Vs Smt.P.Swarajyalaxmi

The National Insurance Co.Ltd.Hyd. Vs K.Venkata Ram Reddy and 2 Ors.

A.P.S.R.T.C. Vs Sri Jakka Shanker Reddy , Shanker Reddy

Andhra Pradesh State Road Transport Corporation, Vs K. Mahesh , Raj Kumar

Bavisetti Nagamani Vs Guthikonda Rama Prakash